Porfolio Recovery Suing Me in Polk Co. FL

[Andrea67]

PRA is suing me for a charged off Walmart credit card issued by Synchrony bank. I have received no snail mail or phone calls from PRA; however they may have called but I do not answer unknown numbers. I have received no snail mail from their filing attorney or representative of same, either.  

I have reviewed the Arbitration link, and have saved a MTC/Order of Arbitration I found in another thread posted by someone in FL who was successful in getting their case dismissed through demanding the arbitration. Since I have not been served at this time, do I file the MTC now, or do I wait till the pre-trial hearing?

 

 

1. Who is the named plaintiff in the suit?

Portfolio Recovery Associates

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Pollack & Rosen, PA 806 Douglas Rd. Coral Gables, FL 33134

3. How much are you being sued for?

$1,491.32 + costs & any other relief the Court deems just and proper

4. Who is the original creditor? (if not the Plaintiff)

SYNCHRONY BANK

5. How do you know you are being sued? (You were served, right?)

I have not yet been served. I received an advert from a "mediation" attorney, then found the filing on the Clerk of Courts website. 

6. How were you served? (Mail, In person, Notice on door)

I have not yet been served. 

7. Was the service legal as required by your state?

NA at this time

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None. 

9. What state and county do you live in?

FL, Polk County, 10th Judicial Circuit

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

July 2016

11. When did you open the account (looking to establish what card agreement may be applicable)?

November 2015

12. What is the SOL on the debt? To find out:

4 years.

Statute of Limitations on Debts

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Case is set for a pre-trial hearing on 09/13/2019.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No. 

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

No.

16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

No questionnaire was inluded in the Statement of Claim. They state they are the current debt holder pursuant to an assignment from OC on or about May 21, 2017. Plaintiff states I as sent correspondence, its representatives or both more than 30 days prior to their filing. (I received no such correspondence.) Plaintiff states $1,491.32, plus costs and any recovery the Court deems appropriate, is owed them. The filing shows Count I-Account Stated. The July 2016 statement is attached to the filing. 

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

I have not yet received a summons. 

18.  How did you find out about this site?

Via Google search. 

18. Read these two links:

Links reviewed. 

[Andrea67]

I would also like to know if I can submit a motion to dismiss with prejudice due to the fact that I never received a letter 30 days prior to advise of their intent to sue. 

[Clydesmom]

On 8/24/2019 at 4:25 PM, Andrea67 said:

They state they are the current debt holder pursuant to an assignment from OC on or about May 21, 2017. Plaintiff states I as sent correspondence, its representatives or both more than 30 days prior to their filing. (I received no such correspondence.)

FL law only requires they SEND notification the debt has been sold.  They do not have to prove you received it.  If they produce a copy of a letter they state they sent to you that is sufficient for the court.

35 minutes ago, Andrea67 said:

I would also like to know if I can submit a motion to dismiss with prejudice due to the fact that I never received a letter 30 days prior to advise of their intent to sue. 

You can but you will not win the motion.  FL does not require they send you any notification prior to suing.  Most JDBs no longer send communication prior to avoid FDCPA claims.

On 8/24/2019 at 4:25 PM, Andrea67 said:

I have not yet received a summons. 

DO NOT file anything until you are served.  You could get lucky and they never serve you and it gets dropped.  Keep a close eye on the docket on line to ensure they do not use an alternative service method.

[Andrea67]

Thanks for your answer. I'll sit tight for now. Would it be a good idea to have a MTC prepared just in case?

[Clydesmom]

1 hour ago, Andrea67 said:

Would it be a good idea to have a MTC prepared just in case?

Absolutely.

[Andrea67]

Thank you! I have an example I got here from another individual who is in FL. I will modify it to my own needs. I have already downloaded the cardholder agreement for 2016; the one for 2015 wasn't available from the consumerfinance.gov website. I also have the arbitration forms for JAMS to complete. Do I ask for Synchrony to pay for the arbitration in the JAMS forms or the MTC?

 

[Clydesmom]

5 minutes ago, Andrea67 said:

Do I ask for Synchrony to pay for the arbitration in the JAMS forms or the MTC?

Synchrony has nothing to do with this now.  The creditor is PRA.  The whole goal is not to actually arbitrate.  It is to get the court to approve the MTC so that pursuing a case against you is so expensive PRA drops the entire matter.  Do not focus on who pays just work on drafting a well written motion for now.

[Andrea67]

Understood. May I post the MTC draft here for critique once I craft it?

[Andrea67]

UPDATE: Apparently either Hurricane Dorian or the lack of service thus far caused the Clerk of Courts to change the pretrial conference date to October 4 (on September 4th, no less). I was magically served today. I am preparing my Motion to Compel Arbitration. I will continue to update. 

[Andrea67]

Would someone kindly critique my MTC doc? Thank you! 

 

IN THE COUNTY COURT OF THE 10^TH

JUDICIAL CIRCUIT IN AND FOR POLK

COUNTY, FLORIDA

SMALL CLAIMS DIVISION

CASE NO: 2019SC-005004-0000-WH

 

 

PORTFOLIO RECOVERY ASSOCIATES, LLC.

%PERAZA MANUEL A, ESQUIRE

806 DOUGLAD RD

SOUTH TOWER, SUITE 200

CORAL GABLES, FL 33134             

                                                                                         

                                      Plaintiff,                                      

                                                                                         

vs.                                                                                    

ME

SOMEWHERE

SOME CITY FL

                                                   

                                      Defendant.

 

/___________________________

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY PROCEEDINGS PENDING ARBITRATION
 

NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about 15 August, 2019, Plaintiff filed its Complaint against Defendant.

2. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

3. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.


4. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

5. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

6. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.



Dated this_______day of_____________________, 20_____.

Name:_________________________________________________  

 City:______________________State_________Zip:___________              

Phone:_________________________________________________

 

 

I certify that a copy of this Motion was ( ) mailed ( ) hand delivered ( ) faxed and mailed to the person(s) listed below:

Other party or his/her attorney:

Name:__________________________________________ Address:________________________________________

City, State, Zip:___________________________________

Fax Number:_____________________________________

 

I understand that I am swearing or affirming under oath to the truthfulness of the claims made above and that the punishment for knowingly making a false statement includes fines and/or imprisonment.

STATE OF _________________________

COUNTY OF _______________________

 

Sworn to or affirmed and signed before me on________________by_____________________________

 

_____Personally known                              ______________________________________________________

_____Produced ID                                      NOTARY PUBLIC or DEPUTY CLERK

Type ID:________________

                                                                  _______________________________________________________

                                                                  My Commission Expires:

[nobk4me]

I would suggest editing this to remove your name and address, and anything else that could identify you.

[Andrea67]

Done!